An inmate who committed first degree murder in 1979 at age 19, and in 2016 was found suitable for parole, will not have to spend additional time in prison based on a later conviction for assault with a deadly weapon on a peace officer, committed when, at age 29, he attacked and nearly killed a guard with a knife, the Court of Appeal for this district has held.

The pendulum swings, and then it swings again. After murderers were routinely released after serving just a few years in the 1970s and 80s, California got tough in the 1990s and 2000s. Most of that has now been reversed in the past 5-10 years as the pendulum swings back. California’s Penal Code section 3051 now provides a chance at parole after 25 years to almost anyone who committed their crimes before age 25 — including most murderers. The provision invalidated assurances that I had given families over the years (although I always said you never know what the California legislature will do next) that the man who killed their son will never have a chance at parole — now that that man had been convicted of murder and sentenced to a term where his first parole date would come up long after he was dead.

At issue in this case was the question whether section 3051 effectively invalidates, in certain cases, another provision that requires consecutive sentences for crimes committed in prison. Los Angeles Superior Court Judge Halim Dhanidina, sitting on assignment in Div. Three, authored the opinion, which mandates the immediate release of Ronald Jenson. I haven’t taken the time this morning to examine the interplay between the two statutory provisions at issue to see whether I agree with the decision or not, but the fact that someone like this can be paroled is eye-opening. The story prompted me to look up the decision. The dissent contains this passage:

In 1979 a jury convicted petitioner Ronald Jenson of the first degree murder of L.C. Walker with a shotgun. The presiding commissioner at Jenson’s April 2016 parole hearing summarized the facts of the crime: “A 64-year old male victim was fatally shot at a gas station. It was reported that he was visiting the gas station attendant who was sitting inside the gas station watching television. According to the attendant, four males entered the gas station with weapons in their possession. Mr. Jenson, who had a shotgun, pressed the weapon into the victim’s side, and another suspect was holding a handgun nearby. The victims were told to sit down and not move. The victim who was killed had a revolver in his pocket, and told the suspects why don’t you kids go on away from here. And his hand came out of his pocket with the handle of the gun visible, at which point the shotgun was fired striking the victim. ․ The victim died from his injuries.” The trial court sentenced Jenson to life with a minimum eligible parole date of 27 years (25 years to life for the first degree murder plus two years for his use of a firearm under the then-applicable version of Penal Code section 12022.5 15 ).

While in prison, Jenson committed three more felonies. He committed two of those crimes—escape without force and manufacture or possession of a deadly weapon by an inmate—during his first year in prison. Jenson was 21 at the time. Then, in 1989, Jenson was charged with assault with a deadly weapon on a peace officer. Jenson was 29 when he committed that offense. Jenson spoke about the crime at his April 2016 parole hearing. Jenson said the officer had used a racial slur in referring to Jenson’s mother and his wife. The officer “told [Jenson] what he was going to do to them sexually.” Jenson continued, “And unfortunately at that time, I lost my cool and I went and got a knife, and I stabbed him and he almost lost his life.”

The Marin County District Attorney filed charges. On November 29, 1989, Jenson entered into a plea agreement with the People. Jenson pleaded guilty to the charge. The court sentenced him to the agreed-upon term of five years in the state prison, to be served consecutively to the life term. The People struck an enhancement on the assault with a deadly weapon count and dismissed a second count as part of the plea deal.

In late 2014, the parole board granted Jenson parole. However, in March 2015, Governor Brown reversed the board’s decision. The Governor described Jenson’s murder of Walker as “senseless.” The Governor continued, “Mr. Jenson’s conduct in prison demonstrates an inability to control his temper and abide by the rules. He has been disciplined for serious misconduct 48 times and less serious misconduct 42 times. Ten of his serious disciplinary actions were for violent behavior including stabbing a correctional officer in the neck, attempting to stab staff, assaulting an inmate, stabbing an inmate, spitting in staff members’ faces, fighting with another inmate, and possession of inmate-manufactured weapons.” The Governor commended Jenson for his “efforts to improve himself during his 36 years of incarceration.” However, in reversing the board’s decision to parole Jenson, the Governor noted Jenson’s “extensive criminal history and many violent acts while incarcerated.” This court denied Jenson’s petition for a writ of habeas corpus challenging the Governor’s decision.

As noted, Jenson had another parole hearing on April 29, 2016. At the hearing, Jenson insisted he did not commit the 1979 murder of Walker. He had been, he said, falsely accused and wrongly convicted. Jenson stated a man named James Downey had fingered him for the crime because of a dispute over a woman. Jenson also said Walker’s friend, eyewitness Walter Diggs, had not positively identified him and had been led by the prosecutor in his testimony at trial.17 In addition, Jenson blamed his co-defendant for testifying against him.

At the 2016 parole hearing, the deputy district attorney representing the People asked the commissioners to question Jenson about custodial counseling chronological documentations (so-called CDC-128-A’s) he received in 2007, 2009, and 2010 for disobeying direct orders of corrections personnel. The district attorney argued against parole for Jenson, stating, “[Jenson] has continued since he was a youth through the transition period into adulthood to violate rules in prison. He has an extremely, for a long time, bad record in prison. I would argue 2007, 2009, 2010 are a continuation.”

Yet, the majority had the gall to write this with knowledge of the facts of the case:

“Our decision merely means that youth offenders who commit nonlife crimes or crimes for which malice aforethought is not an element while in prison after attaining the age of 26 are still entitled to a youth offender parole hearing and to a meaningful opportunity for release. A hearing and an opportunity. Nothing more. At that hearing, the Board will evaluate the prisoner holistically—any Thompson crimes being part of the whole. Such crimes may militate against a grant of parole….Our decision thus does not encourage bad behavior in prison. The youth offender who continues to commit crimes while incarcerated only sabotages the chance of a good outcome at his or her parole hearing. A youth offender parole hearing offers a meaningful opportunity for release. It is not a guarantee of one.”

Given that nearly killing a prison guard, 49 separate disciplinary actions for serious misconduct, and misconduct violation continuing 30 years after commitment to prison aren’t enough to block release—one wonders what, if anything, ever would be.

I had forgotten about this kind of thing when I decided to leave the state.

No, wait. I hadn’t. I also hadn’t forgotten that pretty crimes no longer have penalties, since the jails are full of felons the state cannot house. Petty crimes like home burglary.

This is added to traffic, increasing density (and the state’s near-mandate of more), the sanctuary, the 55-gallon water limit, and the government’s unwillingness to address any of our problems other than with more rules, higher taxes, and rationing.

And being able to unlock substantial value in my house as I leave just makes it all the more obvious.

In late 2014, the parole board granted Jenson parole. However, in March 2015, Governor Brown reversed the board’s decision.

Ponder this for a moment: Governor Jerry Brown is the sensible one in this case. Once he leaves there is no telling what will happen. Gavin Newsom will tack whichever way the wind blows: If he thinks it is politically expedient to be generous with granting parole then he’ll let people out of prison. If he thinks voters are skittish about having murderers roaming free on the streets, then he’ll be strict. But either way you can be sure that Newsom’s decision will be made with regard to his own political ambitions, not with regards to public safety or restorative justice.

Isn’t that an even worse situation that someone who plans a crime? IOW, if a guard insults you, you fly off the handle and stab him almost to death. In open society, he won’t last a minute. Also am gobsmacked that Brown was the almost sensible one in this saga.

The left has pushed the position that the criminal justice system is biased. Gov. Jerry Brown has set up a parole board that has been letting out murderers at an alarming rate. Notwithstanding this case, Brown himself has led the leniency charge, of which Dhanidina fully joined. This and other rulings should make this judge a viable candidate for elevation in the enlightened State of California.

Stop blaming poor California for everything, folks. It was the times. In Illinois, in 1979, a murderer sentenced to natural life would be eligible for parole in twelve years and eight months. Twenty years minus good time.

This guy has served almost forty years. Look the glass as half full, not half empty.

Thanks for linking the opinion. Key paragraph summarizing the decision:

As we now discuss, we conclude that [California Penal Code] sections 3051 and 1170.1(c) are irreconcilable as they apply to a youth offender who commits an additional crime in prison after the age of 26, because section 3051, which specifically addresses youth offenders, dictates that the youth offender be immediately released upon being found suitable for parole. In contrast, section 1170.1(c ) would require the same youth offender to serve any applicable Thompson term [for in-prison offenses] even after being found suitable for release. Because section 3051 is both later-enacted and more specific, we conclude that section 3051 supersedes section 1170.1(c ). Therefore, Jenson need not serve his Thompson term and is entitled to be released from prison.

I don’t know if the court got the result right, but it appears to be a straight-forward statutory interpretation case, meaning that the California Legislature remains free to amend either statute to resolve the conflict in favor of serving the additional time computed under the in-prison offenses statute (section 1170.1(c )).

And to be clear: The policy argument in favor of amending one statute or the other in order to reverse the effect of this decision would be that otherwise, youth offenders who commit additional crimes in prison after the age of 26 will be immediately released upon being found suitable for parole on their original offenses, meaning they are effectively unpunished for their in-prison offenses. If you want to deter in-prison offenses, you don’t want that outcome, even though this court resolved the conflict between the statutes in favor of that outcome for reasons having nothing to do with policy.

Given that nearly killing a prison guard, 49 separate disciplinary actions for serious misconduct, and misconduct violation continuing 30 years after commitment to prison aren’t enough to block release—one wonders what, if anything, ever would be.

5. Kevin M (752a26) — 6/11/2018 @ 8:57 am

Attacking a real person, like a lawyer or a judge. Or maybe supporting Trump.

This, maybe:

The Supreme Court has ruled that after a long period of time, immutable factors often are no longer relevant. However in your case we believe that the crime committed in this offense is one of a very few and falls into the category that remain relevant today…It was a political assassination on a very viable presidential candidate. It was an attack upon the Democratic system that we reside in and it actually clearly affected the potential of this nation and it remains relevant today.

And the interesting thing is, deporting him to Jordan, which is what would happen to him if he was “paroled” makes him more of a danger than releasing him in California, at least as inspiration for others, or as someone who can be used in some way to support terror.

He’d be completely removed from supervision or the possibility of being re-imprisoned, and no conditions could be placed on what he said and did, which would not be the case if he remained in the United States.

The policy argument in favor of amending one statute or the other in order to reverse the effect of this decision would be that otherwise, youth offenders who commit additional crimes in prison after the age of 26 will be immediately released upon being found suitable for parole on their original offenses, meaning they are effectively unpunished for their in-prison offenses.

Except to the extent that the additional crimes would delay or inhibit his parole.

The acting justice noted that he is 58, has not broken the law since 1989 (when he committed the stabbing), and he has not received discipline for a “serious rule violation” for a period in excess of 17 years.

this seems compelling but i’m unclear what (if anything) happens if he violates his parole

the problem with parole is you have a parole officer

and that person is probably not gonna be super-enthusiastic about letting you move somewhere more congenial

and the heart quails at the prospect of being a 58-year-old uneducated ex-con in Los Angeles

there’s just no chance of having a life of dignity and even the simplest of pleasures

especially if you’re not a people person, and this guy seems like he should probably have his own place where there’s nobody to spit on or stab

It’s a “hopeless situation” happyfeet, because the state mental institution called California made it one. If they had done the moral, common, decent thing when he was first convicted of first degree murder in 1979 and executed the filthy bastard nothing since then up till now would have occurred. It’s called justice which no longer seems to exist.

And when Mr Jenson robs, murders, rapes or molests some innocent people now that he’s back on the streets — with no useful skills, of course — what penalty will the judges who agreed to his release suffer?

OK, OK, we all know the answer: they will suffer no penalties at all. Public officials are shielded from legal liability for the consequences of their decisions, and that is why they do stupid s(tuff) like this. If judges and parole boards were held accountable for the misdeeds of criminals they released early or sentenced to less than the maximum allowed under the law, they’d never release criminals early or fail to give them the maximum sentences.

These ‘public servants’ need to be held accountable for the consequences of their actions! We won’t do that, of course, but it needs to happen.

Ponder this for a moment: Governor Jerry Brown is the sensible one in this case. Once he leaves there is no telling what will happen. Gavin Newsom will tack whichever way the wind blows: If he thinks it is politically expedient to be generous with granting parole then he’ll let people out of prison. If he thinks voters are skittish about having murderers roaming free on the streets, then he’ll be strict. But either way you can be sure that Newsom’s decision will be made with regard to his own political ambitions, not with regards to public safety or restorative justice.
JVW (42615e) — 6/11/2018 @ 9:42 am

I think there is one other factor at play. It was there for Brown and likely will for Newsom. That is, what if the murderer kills another after he is released? Brown didn’t want that to bite him in the ass, and I suspect it will be part of Newsom’s calculations as well. That guy that raped and killed that woman in Massachusetts while on his weekend furlough really affected Dukakis’ political career, and even the most leftist politicians took notice.

In the common law, a defendant was required to answer to a charge by pleading guilty or not guilty, and if he refused he could be tortured until he did. Tortured. For reals. Until he said “guilty” or “not guilty”. By the mid-1800s the rule had been ameliorated, so that if a defendant refused to plead, the court would enter a plea of not guilty for him. I guess Judge Gallagher hasn’t read any of the newer law books.

Speaking of [gentlemen of questionable masculinity and unsanitary sexual practices], and by that I mean Judge Gallagher and not Morris, may Trump be reincarnated as a gelded water buffalo and Ajit Pai as an anthrax infection on his butt. For the past twelve days, AT&T has been celebrating the end of Net Neutrality by turning off my internet as it pleases starting with a total outage from May 31 to June 5 and continuing intermittently since.

It’s game theory. As described by John Nash and practiced by oligopolies tacitly colluding. Reach an equilibrium where they all make the same maximum profit off the consumer (that would be me) at the same minimum cost, which makes it pointless for the consumer (that would be me) to drop one in favor of another because that one will also treat the consumer (that would be me) like sh!t. And why we need government regulation of the bloodsuckers.

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